Preying on the Poor
I am pleased that Richard Braun has directed the general bar’s attention
to the legal funding industry ('Settle Now, Pay Later,' May
2002).

The Oregon Trial Lawyers Association has led the way in
condemning the infiltration of personal injury 'lenders' in
Oregon. Our members were warned in our June 2001 SideBar ('Preying
on the Poor') that such loans were fraught with ethical peril and
should be avoided like the plague. We are opposed personal injury lenders
not only because of the enormous ethical problems for lawyers whose
clients participate in such loans, but, more importantly, because of
the huge abuse to consumers that necessarily occurs from predatory lenders.

State Rep. Charlie Ringo of Beaverton has also been a
leader in this area. He prepared a bill in the 2001 session to outlaw
personal injury loans in Oregon. Unfortunately the bill did not move
forward in large part due to the substantial opposition it would have
received from the same lobby that prevented reform of the 'car-title'
and 'pay-day' loan business.

When the legislature next convenes, perhaps the bar at
large will now join OTLA in seeking to protect Oregon consumers from
a loan business that is as bad for lawyers as it is dangerous to personal
injury claimants.

Richard S. Yugler
President, Oregon Trial Lawyers Association

Just Punishment?

To call the Death Penalty a 'just punishment'
when it takes at least a decade for it to be imposed and requires 'two
or even three times' to get it right (maybe) is an insult to the
intelligence of any rational reader ('A Just Punishment,'
May 2002). One wonders how the family and friends of the victim feel
about having to endure the trial process multiple times and having to
wonder when, if ever, a sentence that will stand up will finally be
imposed on the perpetrator of a 'horrific' murder.

The hallmarks of justice are swiftness and surety. A system
that cannot deliver these attributes is 'fatally flawed.'
A system that is wrong 68 percent of the time indicates an inability
to handle the challenges of imposing the most extreme penalty.

Tim Armbruster
Tucson, Ariz.

Capitol Folklore

The article by Cliff Collins on the remodeling of the
Supreme Court Library, now the State of Oregon Law Library and particularly
the reference to the capitol fire in 1935, produced some pangs of nostalgia
('Touch Up for an Aging Beauty,' May 2002).

When I was a student at Willamette University (1933-37),
I worked part-time at the State Library, which then occupied most of
the first floor, the basement and the attic of the Oregon Supreme Court
building. The Supreme Court Library was on the second floor, and the
courtroom and justices’ chambers occupied the third floor. My duties
were shelving books, wrapping packages and general errand- boy. It was
beyond my wildest dreams that some day I would serve in that building
as an associate justice.

The supreme court building was connected to the capitol
building by an underground tunnel for heat, electricity, etc., and when
the capitol building burned in 1935, the water that was poured on, in
a vain attempt to extinguish the fire, flowed into the basement of the
supreme court building. There it soaked and ruined many of the state
library books that were shelved in the basement. One of my tasks was
to retrieve the damaged books and try to dry them out or dispose of
the ones that could not be salvaged.The capitol fire was a major event
in many ways, besides the loss of an historic structure. One of our
fellow students, who was working as a volunteer fireman in exchange
for a place to sleep in a fire station, was killed when struck by a
falling cornice. For days the streets of Salem were littered with charred
paper that had been state documents until scattered by fire-driven winds.
The building’s dome was made of copper, and some of it was recovered
and peddled around town as souvenir ash trays, etc. Some of the building’s
columns were salvaged and set up as a pseudo-Greek temple on the campus
across the street. And of course it provided folklore material for a
long time.

Randall B. Kester
Portland

Diversity Requirement, Revisited

Not having been able to attend the actual presentation
on April 11, I decided to satisfy the new 'diversity' requirement
early in my reporting period as did Diane Gruber (Letters, June 2002).
I did so by requesting the tapes of the presentation and listening to
them at home.

As I listened I had much the same reaction as attorney
Gruber and other attendees appear to have had. I, too, felt that the
tape was a waste of time, but I reasoned that this is something that
we’re probably just going to have to put up with. Perhaps if enough
future tape listeners have the same reaction and make their feelings
known, someone at 'headquarters' will do something about it.

Arthur L. Whinston
Portland

I attended with about 20 Sole and Small Firm (SSFP) Section
members the free SSFP Section-sponsored MCLE presentation at Willamette
University on June 15, presented by OSB President Angel Lopez. The presentation
was excellent and generated interesting discussions about class issues,
demographic trends in Oregon and the nation, personal reflections on
client and court misunderstandings relating to different perspectives/beliefs/customs,
and whether the diversity requirement should be mandated as an MCLE
by the Board of Govenors, OSB or supreme court.

In the June Bulletin (Letters) and on the list-serve
of the SSFP Section, colleagues have suggested that the new so-called
diversity requirement exceeds the scope of the OSB’s mission. I disagree.

The law is supposed to be a noble profession, one of its
primary goals being to protect individuals in society from persons who
would abuse power for their own purposes (e.g., Richard Nixon or any
common purse snatcher). William Shakespeare recognized this goal in
his often misquoted words to the effect that 'the first thing we
do is kill all the lawyers.' Shakespeare was talking of course
about how to destroy a society, how to overthrow its institutions. Shakespeare
understood that the law and those who practice it serve the role of
promoting fairness, validating institutions and protecting against abuse
of power. Lawyers are supposed to uphold what is best about a society.

CLE is designed to allow us to continue our 'legal
education' generally and to specifically 'improve the competence
and skills of Oregon lawyers.' Legal education and competency include
professionalism. A host of rules in the Code of Professional Responsibility
already regulate how we can act. One way to improve lawyer competence
with clients, judges and juries is to help us understand 'racial
and ethnic issues, gender fairness, disability issues and access to
justice.' MCLE Rule 3.3. I suggest that class distinction be added
to the list. Professionalism and competence therefore include treating
others respectfully, honestly and compassionately. I believe the new
diversity requirement can help us in those areas.

As Angel Lopez pointed out during his presentation, demographers
project that within 50 years, the current European majority in the USA
will be the minority. Other racial groups from Asia, Africa and South/Central
America will increase their numbers to majority status. There also will
be far more disabled people as we live longer and as the number of humans
increases.

Lopez suggested that if these trends persist, the law
and its practitioners will lose legitimacy unless it and they become
sensitive to larger numbers of diverse people. If nothing else, personal
self-interest suggests that we should become more aware of groups outside
ourselves.

As lawyers, we certainly can improve our competence by
understanding larger than ourself issues that affect other people. I
do not see how allowing us to open our eyes to the needs, beliefs, customs,
thought processes and cultural biases of others, can possibly hurt us
in pursuing the legal profession. It might even help us.

I just read two letters in the June issue, both attacking
the bar’s CLE cultural diversity requirement. One writer employed primarily
indignation, the other sarcasm. However, both writers obviously feel
that they themselves possess no racial or cultural insensitivities worth
mentioning, and thus have nothing to learn from any trainings on the
subject.

Whether or not the bar should be in the business of promoting
cultural sensitivity through mandates is a legitimate question. Apart
from that, though, anybody raised in America who claims to be free of
prejudice is either a liar, a fool or a saint. If these two writers’
attitudes speak for any significant portion of Oregon lawyers, then
the bar is right on at least one thing: A serious problem exists among
its members.

Timothy P. Baxter
Eugene

I read with interest the letters to the editor in the
June and July issues of the Bulletin criticizing the 'cultural
competency' seminar pertaining to the CLE diversity requirement.

I would ask the critics to consider the following:

1. The negotiation and execution of modern contracts with
companies from Pacific-Rim countries, including Mexico (remember APEC
and NAFTA?), require a knowledge not only of the language and legal
customs of the country, but also of the negotiation strategies employed
by individuals from these different cultures (witness the number of
attorneys now being hired who are fluent in several languages);

2. An increasing number of my colleagues are learning
Spanish due to the influx of Hispanic people into Oregon (approximately
10 percent of Oregon’s population);

3. A great number of foreign immigrants who have settled
in Oregon experience extreme difficulties navigating the 'complex
waters' of our criminal and civil law system, and practitioners
might need to understand the cultural frustrations experienced by these
clients.

If the curriculum embraces the above issues, then it is
a forward-looking program to assist Oregon lawyers to better serve their
clients and to better understand and appreciate ethnic and cultural
diversities. Only then may we, as a profession operating within a global
economy, help to sustain the competitive advantage enjoyed by our state
and nation with other economies and societies.

My advice to the naysayers: 'Keep the criticism constructive
and stop the whining.'

Philip F. Schuster IIPortland

Diane Abraham’s recent editorial in the Bulletin provides
a good starting point for further discussion of diversity training for
OSB members (Letters, June 2002).

Her thesis begins with two stated major premises: the
legal profession is an important part of our society, and lawyers in
the U.S. are statistically most likely to be white males, who are likely
to be biased against all others. An important implication is that this
male-dominated profession, currently flawed, is worth preserving. Another
implication is that the profession will be made well, and justice served,
by changing the makeup of its membership so that it is an exact reflection
of the overall demographic composition of the United States.

The reasoning which appears to underlie the latter implication
is that those who currently are underrepresented will gain in social
and economic power as a result of grater inclusion in the legal profession,
and that their views thus will be given more weight. This reasoning
is likely valid. Implicit in this desirable shift in bar membership
is a shift in political power.

I suggest that it is primarily this political aspect of
diversity training which is causing so much discomfort among OSB members.
As pointed out by James Vick in a recent letter to the Bulletin (July
2002), mandatory political training is an unprecedented departure from
prior CLE subjects. The originators of this departure have not acknowledged
its political nature.

We are troubled by the thought of a subject so broad that
courses may plausibly involve almost any topic.

And it is difficult not to be offended by the sudden presumption
that we are not culturally competent until we have received formal training.

I am sure that many of us share Ms. Abraham’s ideals.
I am not sure that those who do not should be compelled to be trained
in them. Persuasion is likely to have a better impact than coercion.

It’s wonderful that the members of the OSB care enough
about this issue to have such a lively debate. It’s a shame that it
is taking place after the fact.

Charles D. Bates, Portland

A wise person once said that democracy begins in dialogue;
so too does the achievement of diversity. From dialogue flows the mutual
respect and understanding our society and profession sorely needs. Therefore,
I am encouraged by the discussion about diversity in the last Bulletin.

I strongly supported the new MCLE diversity requirement
during my recent term on the Board of Governors. I continue to believe
that we owe it to the public we serve to make the modest effort the
rule requires. I am convinced that we will become a better profession
if we do so.

I do want to address the charge that the new MCLE requirement
reflects a politically partisan viewpoint. (See, letter of James Vick,
July 2002.) This charge implies that the Board of Governors (the body
recommending the rule change) and the Oregon Supreme Court (the body
approving it) acted in a politically partisan manner by passing the
rule. This contention of political partisanship is untenable. I was
present when both bodies thoroughly debated the proposed rule change.
The rule change was voted in because the Board of Governors and Oregon
Supreme Court properly exercised their discretion and leadership. This
rule change is not about politics – it is about professional responsibility.

As a judge, I welcome diverse members of the bar to our
profession. I also appreciate how diversity has enriched my life, professionally
and otherwise. Let us continue to improve the quality of our profession
by embracing diversity.

Richard C. BaldwinMultnomah County Circuit Court

Editor’s note: And this, dear readers, is the
end of this thread of letters on this subject. Thank you for your generous
feedback. Please direct future correspondence on this topic to the OSB
Board of Governors, Attention: Diversity Requirement, 5200 S.W. Meadows
Road, Lake Oswego, Ore. 97035.

Comments InappropriateIn 1999 a bar disciplinary panel imposed a six-month suspension
as a sanction on a highly respected Portland lawyer after finding he
had made false statements while under oath in a deposition. In June,
a divided Oregon Supreme Court increased the suspension to two years.
One justice dissented, stating that the sanction should have remained
at six months.

The next day, the Oregonian article describing the supreme
court’s action in lengthening the sanction contained the following quotation
from the current bar president:

Angel Lopez, also a Portland attorney and president of
the Oregon State Bar, applauded the Supreme Court’s decision. [The lawyer
who was sanctioned] 'is a high-profile attorney with a long history
of fair dealing,' Lopez said. 'But lawyers who are dishonest
while under oath will not be tolerated and there will be consequences.'

I and many other lawyers believe it was entirely inappropriate
for the bar president (or any other bar official or employee) to make
public comments about what sanction, if any, to impose in a particular
discipline case — either for or against the interests of a particular
lawyer. First of all, the Board of Governors has not been involved in
specific discipline cases for about twenty years; that responsibility
now lies with the State Professional Responsibility Board. Second, in
approving the stronger sanction imposed by a supreme court majority,
the bar president was showing disrespect to the original trial panel
that took the time as volunteers to hear all the evidence and to reach
the panel’s original sanction decision. Third, no bar official should
purport to speak for all lawyers as to the results of any particular
discipline case. Will future bar presidents now be giving box scores
on other cases? ('I’m pleased she wasn’t sanctioned.' 'He
should have been disbarred.' 'The sanction seems just about
right to me.') This makes the bar look highly politicized and as
if it is pandering to the media. Finally, 'applauding' the
results was especially inappropriate in this case because the supreme
court itself was divided on the appropriate sanction, with one justice
writing a forceful dissent arguing for a lesser suspension of six months.

I don’t know if the lawyer in this case deserved a six-month
suspension, a two-month suspension, or some other result. I do know
that no Oregon lawyer who is sanctioned deserves to have his or her
nose rubbed in publicly it by a bar official (especially by one who
had nothing to do with the discipline process that imposed the sanction)
— that’s just plain wrong.

All bar officials should limit their comments to the media
on discipline matters to a general description of the bar disciplinary
process and a statement of facts in a specific case that are subject
to disclosure under the Public Records Law. Any media comments containing
personal opinions about the case will necessarily be seen as a statement
of position on behalf of the bar as an organization — something that
is inappropriate. If a particular bar official feels a burning need
to make media comments concerning a specific discipline case (based
on the official’s First Amendment rights or otherwise), the bar official
should first resign his or her bar position so no one will erroneously
believe the comment is offered on behalf of the bar itself.

If bar officials can’t be relied upon to use good judgment
in matters like this, a specific rule should be enacted by the House
of Delegates this October prohibiting future bar presidents, Board of
Governors members and bar staff from offering their personal opinions
in media comments concerning the sanctions or other results of specific
discipline cases.

Kirk R. HallPortland

OSB President Angel Lopez responds:
I thank Mr. Hall for his letter, although I do not agree with his analysis.
Two years ago my predecessors, Ed Harnden and Larry Rew, made a public
statement to the press about the asset acquisition strategy tied to
this matter. I think they were right in doing so. As the bar president,
I am looked to as spokesperson of the bar. In that capacity, I see nothing
wrong with stating the position that our professional disciplinary system
will not allow bar members to misstate material matters under oath,
which was the substance of my comments. I could argue with the use of
the word 'applauded,' which was not a direct quote. However,
the bottom line is that the OSB has always maintained an open relationship
with the press. That accessibility has been recognized by Oregon’s media
and is an important component of serving the broad interests of the
bar.